Indeterminate Sentencing: Rehabilitation or Damnation?

In Salt Lake City suburbia, a woman named Linda Gillman was convicted of criminal solicitation for trying to hire a hitman to kill her ex-husband. I heard about this crime on a podcast called “Criminal” and mostly, I wasn’t especially surprised about any of the facts: I heard stories like this before. What piqued my interest in this case, however, was the sentencing. The state of Utah has something called “indeterminate sentencing”, as the podcast host, Phoebe Judge, reported. This gave me pause. My knee-jerk reaction was one of indignation.

Sentencing is never far from my mind now-a-days. In law school, sentencing is almost an after-thought. We learn about it mostly in the context of sentencing submissions: the practical considerations of what to tell the court about your client, what sentence to propose, how to manage a client’s expectations, and so on. Unless you seek it out, you can graduate law school without ever needing to consider why sentencing regimes are built the way they are. Sentencing, in essence, is what happens to your client once your job is done (with exceptions made for cases that might be appealed). But if the point of the criminal justice system is reaching a “just” outcome, sentencing – as the consequence for the convicted person, the proverbial “righting of the scales” – is at the crux of the debate. That is why, whenever I hear of different types of sentencing regimes, I am intrigued. That is why, after a moment of consideration, I began to wonder what does it mean? Can we learn from it? Can we use it? These were the questions that lit up in my mind when I heard about Linda Gillman.

I went to the beginning. Sentencing in Utah, as per the Board of Pardons and Paroles (1), occurs through the imposition of a timeframe, rather than a set duration, and that time-frame is dictated by the legislation. Once a person is sentenced, the Board of Pardons and Paroles has jurisdiction over that person. The convicted person will serve out the maximum statutory sentence unless the board decides, at a hearing, that he or she should be released prior to the expiration of the maximum sentence. When a person is imprisoned he or she receives an “original hearing” at a time that depends on the crime committed and the decision of the board. That original hearing can result in the scheduling of a parole date, scheduling of a release without parole, a scheduling of a rehearing at any point in the sentence as the board sees fit, or an order for the inmate to serve the maximum statutory sentence. This sentencing regime applies to all felony convictions, which span a huge range of possible offences.(2) In the United States, “33 states operate a primarily indeterminate sentencing system”(3), though not all are identical to the one I described above. Some form of indeterminate sentencing is used in Australia, New Zealand, the UK, and in Canada, though its use is much more limited, which is probably why the system described in “Criminal” didn’t ring a bell with me.

In Canada, the Criminal Code, allows for an indeterminate sentence to be imposed in circumstances where “the court finds an offender to be a dangerous offender”(4). This classification is applicable to offenders who are found guilty of a “personal injury offence” and where he or she is deemed to be: 1) a continuous threat to other persons due to the offender’s inability to restrain his or her behaviour; 2) showing an indifference towards the consequences of his or her behaviour; or 3) where the offender’s behaviour in relation to the offence committed was so brutal as to make it unlikely that his or her behaviour can be inhibited by “normal standards of behavioural restraint”(5). This designation may also apply in circumstances where the offender has “shown a failure to control his or her sexual impulses” and where those impulses are likely to cause “injury, pain or other evil to other persons”(6). Indeterminate sentencing is only one option that can be imposed upon dangerous offenders (DOs). For the sake of comparison, at the end of the 2015-16 fiscal year, Correctional Services Canada reported that under 5% of all offenders in custody in federal institutions were classified as DOs, though the statistics did not specify what percentage of those DOs were serving indeterminate sentences (7) but it can be assumed that it is less than the total DO population. This crude snapshot of Canada’s use of indeterminate sentencing implies that it is used as a “lock-them-up-and-throw-away-the-key”, last resort method of removing from society individuals that we otherwise deem unequipped to live in society, the “real monsters” as they are shown in pop culture and perceived by the public. Drs. Harry Annison and Rachel Condry look at an almost identical model in the UK, where dangerous offenders are sentenced to Imprisonment for Public Protection (IPP). Annison and Condry look at IPP in relation to potential harms that such sentencing may have on the families of the imprisoned offenders. In their study, they find that challenges and harms common to all families of prisoners are exacerbated amongst the studied populations (8). This further illustrates this idea that indeterminate sentencing is a harsh penalty, to be scarcely used, only in circumstances where we, as a society, no longer know what to do about an individual that scares us on a primal level.

However, hearing indeterminate sentencing used in the context of Linda Gillman, I couldn’t help but wonder whether indeterminate sentencing can be used positively? Can it force accountability in the system and move the system more towards rehabilitation, where it is forced to revisit its inmates and re-evaluate their progress, time and time again? Can it be used as a motivational tool for offenders to want to do better? The prospect seems fantastic and fantastical, all at once. Fantastic because, at least in the US the basis for indeterminate sentencing was steeped in the rehabilitative model, rehabilitation being the “primary goal of corrections” in the minds of many people before the 70s (9). Fantastical because of the potential harm of indeterminate sentencing (as can be seen in the context of its use with DOs) but also for other reasons. Even back in the 60’s, when the predominant model was that of rehabilitation, critics “of the indeterminate sentencing model pointed to the disparity in the parole release system”(10). These critics cited such issues as discrimination against poor and minority offenders, coercion of imprisoned offenders into programming, and denial of parole to those offenders who challenged the system and its injustices. These are systemic concerns, concerns that we still see today, that are present in some form within the determinative sentencing model, as well. These concerns are reflected in the disparities between the demographics of the imprisoned and non-imprisoned populations. I would argue that these concerns are serious but, perhaps, not completely determinative. As we explore further what criminality is, how we deal with it, and what are the systemic problems within our justice system, it is important to not dismiss potential sentencing models that might have merit and the indeterminate sentencing model is one that could be explored further, if never implemented in its entirety.

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